Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC617275
ELIA, J.Michael Ward (appellant) brings this appeal from a judgment of conviction of drug and weapons offenses. Before trial, the superior court denied his motion to suppress the contraband found in a motel room in which he was staying. (Pen. Code, § 1538.5.) The search was based on search conditions applicable to appellant as a parolee. For reasons that follow, we have determined that the officers had reasonable suspicion that the motel room and black plastic trash bag appellant was carrying were under appellant's control and thus the search was within the scope of the parole search. Accordingly, we conclude the court properly denied the suppression motion.
Furthermore, with respect to appellant's other issues, we conclude that the admission at trial of evidence of his prior convictions was error, but harmless, and the imposition of consecutive sentences was proper. Accordingly, we affirm the judgment.
Facts and Procedural Background
The Santa Clara County District Attorney charged appellant in a three-count information filed on July 7, 2006, with one count of possession of a firearm by a person convicted of a violent felony (Pen. Code, § 12021.1, subd. (a), count one); one count of possession of ammunition by a person prohibited from possessing a firearm (Pen. Code, § 12316, subd. (b), count two); and one count of possession for sale of marijuana (Health & Saf. Code, § 11359, count three).
The information alleged that appellant had suffered three prior convictions within the meaning of Penal Code section 667, subdivisions (b)-(i) and had served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).
Following a jury trial, appellant was convicted as charged. Appellant waived jury trial on the prior convictions. Thereafter, the court found true the prior conviction and prior prison term allegations.
Subsequently, the court granted appellant's motion to represent himself for purposes of bringing a Romero motion, and at his sentencing hearing. Later, however, at appellant's request, the court reappointed appellant's trial counsel who represented appellant at his Romero and sentencing hearing.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Ultimately, on August 31, 2007, the court denied appellant's request to strike his prior convictions. The court sentenced appellant to a total prison term of 52 years to life consisting of 25 years to life on count one, a consecutive 25 years to life term on count two, plus two consecutive one year terms pursuant to Penal Code section 667.5. The court imposed a sentence of 25 years to life on count three, but ran the term concurrent to the other terms. On the same day, appellant filed a notice of appeal.
The facts relevant to the charges of which appellant was convicted are generally undisputed. On January 16, 2006, San Jose police officers searched room 28 at the AAA motel in San Jose and discovered a plastic ammunition container.
Upon searching appellant, Officer Brasil found a room key for room 28 and a cell phone with the image of a marijuana leaf on it. The motel clerk testified that he rented room 29 to appellant on January 13, 2006. On January 15, 2006, appellant moved to room 28. Appellant paid for room 29 and room 28 each day from January 13 through January 16, 2006. Appellant had two pieces of luggage with him when he checked into the motel. The woman who was with him had a backpack.
Upon searching room 28, inside a duffel bag found in a closet area, Officer Brasil discovered a digital scale, approximately 35 small plastic baggies of a type commonly used to package controlled substances, a radio scanner, ski mask and two pieces of paper with appellant's name on them.
Inside a vent above the shower in the bathroom, Officer Corbin found a .22-caliber semi-automatic handgun with two rounds of ammunition in the magazine, and approximately seven grams of marijuana. Officer Corbin also found part of a plastic baggie in the toilet.
At trial, Officer Brasil opined that the quantity of marijuana found was possessed for sale based on the quantity found and the presence of the scale, the baggies, the scanner, and the cell phone.
Upon searching a black plastic garbage bag that appellant had been carrying when he came out of room 28, Officer Brasil found 86 rounds of .22-caliber ammunition inside a wet sock. The bullets found in the gun were the same caliber and made by the same manufacturer as those found in the sock. However, those found in the sock were of a slightly different design being "copper coated lead round nose" whereas the two bullets in the gun were "lead round nose."
Discussion
I. Motion to Suppress Evidence
Before trial appellant moved under Penal Code section 1538.5 to suppress the evidence found by the San Jose police officers on the grounds that the police did not have reasonable suspicion to detain him nor did they have probable cause to believe he resided at the motel, or controlled the items searched. The court held an evidentiary hearing on January 9, 2007, after which the court denied appellant's motion. Appellant asserts that it was error for the trial court to deny his motion to suppress.
Standard of Review
" 'An appellate court's review of a trial court's ruling on a motion to suppress is governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] "The [trial] court's resolution of each of these inquiries is, of course, subject to appellate review." [Citations.] [¶] The court's resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, . . . is also subject to independent review.' [Citation.]" (People v. Alvarez (1996) 14 Cal.4th 155, 182.)
The trial court is vested with the power to judge the credibility of witnesses, resolve conflicts in the testimony, weigh evidence and draw factual inferences. Accordingly, on appeal, this court must view the evidence in the light most favorable to the trial court's order denying the motion to suppress, and must affirm its determination if supported by substantial evidence. (People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 410.)
Whether evidence is subject to exclusion because of an illegal search and seizure must be determined pursuant to the Fourth Amendment of the federal Constitution. (People v. Robles (2000) 23 Cal.4th 789, 794.)
Since our review is based on the evidence presented at the suppression hearing (see, e.g., People v. Glaser (1995) 11 Cal.4th 354, 360), we set forth in detail that evidence.
Evidence Adduced at the Hearing on the Motion to Suppress
Officer Stahl testified that on January 16, 2006, he and Officer Brasil were working undercover. They were conducting surveillance of street-level prostitution. Officer Stahl noticed a woman, later identified as Jimella Johnson in the area of Monterey Highway waiving to solo male drivers who were going southbound on the highway. He believed that she was engaged in soliciting prostitution. At about the same time, Officer Stahl saw another woman later identified as Jonisha King in the parking lot of Monterey Liquors. After a few minutes, Johnson joined King in the parking lot.
Shortly thereafter, Officer Stahl saw a Beige GMC pick-up truck pull into the parking lot and a Hispanic male, later identified as Jorge Garcia, get out of the passenger side of the truck and walk up to Johnson who was in the middle of the parking lot. They talked for approximately one minute, although Officer Stahl could not hear what they were saying.
After Johnson and Garcia finished talking, they walked to the pick-up truck and Garcia got into the rear passenger seat and Johnson got into the front passenger seat. At this time, King had gone back to Monterey Highway and starting walking northbound. Again, she waved at solo male drivers traveling southbound on the highway.
The pick-up truck drove out of the parking lot of Monterey Liquors and went straight across the street into the An-Jan parking lot. As the truck pulled into the An-Jan parking lot, Officer Stahl saw King walk over to the passenger side of the truck. She appeared to be talking to the occupants of the truck for about a minute. Then, again, King began walking northbound on Monterey Highway.
According to Officer Stahl, An-Jan is a pet food store.
Officer Stahl and Officer Brasil followed the beige pick-up truck northbound on Monterey Highway where the truck made a U-turn at Cottage Grove and then pulled into the AAA Motel. The truck parked directly in front of room 14. The three people who had been in the truck got out and Johnson and Garcia went straight into room 14.
The driver of the truck, later identified as Samuel Castro, remained outside the truck. King came into the parking lot of the motel and walked towards room 28. As she did so, Castro walked across the parking lot and started to talk to King. The conversation lasted for about a minute or two. Then, they both went into room 28. At this time, Officer Stahl was standing in the parking lot of the motel.
Officer Stahl called Officer Brasil on his cell phone and told him where the occupants of the vehicle had gone and the room numbers. Officer Brasil came into the parking lot of the motel on foot. Both officers then knocked on the door of room 14. After about a minute, Johnson opened the door. She came out of the room because, according to Officer Stahl, she recognized him. Apparently, Officer Stahl had cited her approximately a week before this incident for prostitution in the same motel room. As Johnson opened the door the officers identified themselves as police officers. They were both wearing their badges on the outside of their clothing.
Officer Stahl ended up talking to Johnson while Officer Brasil interviewed Garcia. Both officers stood outside room 14 while they conducted the interviews. Johnson told Officer Stahl that she had been soliciting for acts of prostitution in the Monterey Liquors parking lot and had agreed with Garcia on $60 for oral copulation.
Officer Stahl asked whether King was "working too" and Johnson told him that she was. Officer Stahl did not mention King by name. However, he asked Johnson about the girl who was talking to her in the Monterey Liquors parking lot and who went into room 28. While the interview was going on, Officer Stahl was looking over to room 28, which was about 200 -300 feet away.
By "working," Officer Stahl meant working the streets soliciting prostitution.
Officer Stahl saw a black male, who was later identified as appellant, open the blinds/curtains and look out towards the officers. At this time, both officers still had their badges on the outside of their clothing and their firearms were exposed, but not drawn. Officer Brasil also saw appellant looking out of the window of room 28.
Appellant backed away from the window and the blinds/curtains closed. Then, the blinds/curtains opened again and King looked out of the window for about 30 seconds to a minute. Shortly thereafter, appellant and Castro came out of the room. Officer Stahl began to walk across the parking lot towards room 28. Appellant headed toward some garbage cans while Castro went in the opposite direction. Officer Stahl asked appellant to " 'come over' " and talk to him. At this time, appellant was carrying a black trash bag and a phone book. Appellant asked Officer Stahl if he could go and throw away the trash bag. Officer Stahl replied, " 'No, come over here and talk to me. You can do that afterwards.' " Officer Stahl testified that if appellant had been going to the manager's office to return the phone book, he was heading in the wrong direction.
Officer Stahl had both appellant and Castro sit on the curb that was directly in front of him. Appellant asked Officer Stahl what was going on. Officer Stahl advised appellant that he was investigating presumed prostitution that was occurring in his room. Appellant immediately replied that he could not be a part of that because he was on parole. At this time, neither officer had entered room 28 nor had they searched the black plastic trash bag. Appellant gave Officer Stahl his correct name and date of birth. Officer Stahl asked appellant for which crime he was on parole. Appellant replied, " '211/212.' " Officer Stahl took this to mean robbery. Officer Stahl "call[ed] in" appellant's name and date of birth to see if appellant was really on parole.
The parties stipulated that appellant was on parole on January 16, 2006.
A couple of minutes later, as King came out of room 28 she asked Officer Stahl what was going on. When Officer Stahl told her to come over to him she walked back into the room. King stayed in the room for two to five minutes and then walked back out and sat on the curb.
A few minutes later, after Officers Corbin and Kelper arrived, Officer Stahl walked over to Officer Brasil to advise him that appellant was a parolee. Officer Brasil talked to Castro and King for a minute or two and then entered room 28. When Officer Brasil walked out of room 28, immediately, he went to appellant, handcuffed him and conducted a pat-search on appellant. Officer Stahl saw Officer Brasil pick up the black plastic trash bag and go back into room 28.
Officer Brasil testified that when he spoke to King she admitted that she intended to engage in a sex act for money with Castro. Furthermore, he remembered that Castro said the room was not his. By this time, based on his training and experience investigating prostitution activities, Officer Brasil believed that room 28 belonged to appellant and King. Officer Brasil testified that in his experience, working prostitutes share a room with their "pimps."
Officer Brasil testified extensively regarding his training and field experience with street level prostitution and narcotics dealing.
Officer Brasil testified that when he first went into room 28 he saw what he recognized as an empty plastic ammunition container on the floor in the entranceway to the bathroom. Immediately, he went outside, handcuffed appellant and pat searched him looking for a gun. At this time, he did not find anything on appellant. Officer Brasil told either Officer Stahl or Officer Corbin that he needed assistance to search room 28. Then, Officer Brasil grabbed the trash bag and returned to room 28 where he dumped out the contents of the bag looking for a handgun. Besides trash, Officer Brasil found a wet white sock containing 86 rounds of .22-caliber ammunition.
Officer Corbin searched the bathroom while Officer Brasil located a black duffel bag, which he opened. Inside the duffel bag, Officer Brasil found two pieces of paper with appellant's name, a scanner, a digital scale, a ski mask and plastic baggies.
Officer Corbin handed Officer Brasil a gun he had found. Officer Brasil cleared the weapon finding two rounds of .22-caliber ammunition in the magazine. In addition to the gun, Officer Corbin handed Officer Brasil a green leafy substance that based on his training and experience Officer Brasil determined was marijuana.
Officer Corbin testified that when he searched the bathroom he noticed a shiny black plastic material in the crease of the vent in the ceiling above the shower. When he pulled this material through the vent, he found the remnants of a black plastic garbage bag and marijuana. The vent led to a crawl space above rooms 28 and 29. Officer Corbin found a handgun above the shower vent in that crawl space. The gun, a .22-caliber magnum had a magazine in it.
In denying appellant's motion to suppress the evidence found in room 28 the court made the following findings. Appellant had been detained when Officer Stahl told him he could not throw away the garbage bag. However, the detention was reasonable given that the circumstances indicated that prostitution was taking place; Officer Stahl's testimony that appellant volunteered his parole status was credible; and based on appellant's parole status, the search of the room and the bag was appropriate as all were under appellant's control. The court assumed without deciding that appellant had standing to protest the search of the motel room, the garbage bag and the duffel bag, but not the crawl space in the motel room.
As appellant frames the issue, the question is whether the police had reason to believe that appellant resided in room 28, had control over the duffel bag found in the closet in that room, and had control over the plastic bag that he was carrying when the police detained him.
It is important to note that appellant does not dispute that the police had cause to detain him. Further, he does not raise any claim of error in the trial court's finding that the police were aware that he was a parolee.
At the outset, we note that Penal Code section 3067, subdivision (a) provides that all parolees from state prison are subject to "search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause." The United States Supreme Court has held that this statutory provision is constitutional. (Samson v. California (2006) 547 U.S. 843 [126 S.Ct. 2193].) It gives law enforcement the authority to search the parolee, his residence and any property under his control. (See Cal.Code Regs., tit. 15, § 2511, subd. (b)(4) [setting forth the contents of the notice of parole given to each parolee].) A search is reasonable and does not violate any expectation of privacy, even in the absence of a particularized suspicion of criminal activity, as long as the officer knows that the defendant is on parole and subject to a search condition. (People v. Sanders (2003) 31 Cal.4th 318, 333.) "A suspicionless parole search is constitutionally permissible because the parolee lacks a legitimate expectation of privacy and the state has a substantial interest in supervising parolees and reducing recidivism." (People v. Hunter (2006) 140 Cal.App.4th 1147, 1152.)
As the California Supreme Court has interpreted the Fourth Amendment, police officers may make a warrantless search of the residence of a parolee subject to a valid search condition "despite the absence of a particularized suspicion" as long as the search is not conducted for "arbitrary, capricious or harassing purposes." (People v. Reyes (1998) 19 Cal.4th 743, 752-753.)
A residence includes hotel/motel rooms in which citizens are registered. (People v. Williams (1988) 45 Cal.3d 1268, 1297 abrogated on other grounds as stated in People v. Guinan (1998) 18 Cal.4th 558, 569; Hoffa v. United States (1966) 385 U.S. 293, 300 [87 S.Ct. 408].)
Search of Room 28
With respect to the search of room 28, the facts available to the officer must give rise to reasonable belief that the consenting party has authority over premises to be searched. (Illinois v. Rodriguez (1990) 497 U.S. 177, 188-189 [110 S.Ct. 2793].) To put it another way, "officers generally may only search those portions of the residence they reasonably believe the [parolee] has complete or joint control over." (People v. Woods (1999)21 Cal.4th 668, 682.)
By consenting party we mean that as a parolee, appellant consented to the search.
In this case, Officer Brasil reasonably believed, based on his investigations, training and experience, that appellant had at least joint control of room 28. Appellant was seen in room 28 after King and Castro entered. He was not seen entering the room with or after King and Castro so it was reasonable to believe that appellant was there alone before Castro and King entered. In addition, King admitted to Officer Brasil that she intended to engage in an act of prostitution with Castro. Appellant left the motel room carrying a bag of garbage and a phone book. Taking these circumstances together with his training and experience regarding prostitutes and pimps, it was reasonable for Officer Brasil to believe that appellant was King's pimp and that he was sharing the motel room with her. An officer can draw on his training and experience in forming a belief that a person has authority over the premises to be searched as long as it is objectively reasonable. (See Wimberly v. Superior Court (1976) 16 Cal.3d 557, 565 [officer's observations can give rise to his belief only if that officer had sufficient training and experience from which to draw the conclusions necessary to create a reasonable belief]; In re Tony C. (1978) 21 Cal.3d 888, 893 [not only must an officer subjectively entertain a belief, but it must be objectively reasonable for him so to do]; Illinois v. Rodriguez, supra, 497 U.S. at p. 188 [factual determinations bearing upon search and seizure must be judged against an objective standard].) We find that to be the case here.
Search of the Duffel Bag
When executing a parole or probation search, the searching officer may look into closed containers that he or she reasonably believes are in the complete or joint control of the parolee or probationer. (People v. Woods, supra, 21 Cal.4th at p. 682 ; People v. Boyd (1990) 224 Cal.App.3d 736, 749.)
We conclude on the facts outlined that there was reasonable suspicion that the duffel bag belonged to appellant or that he exercised at least joint control or joint possession of the bag. (People v. Boyd, supra, 224 Cal.App.3d at p. 750 [reasonable-suspicion standard used to determine whether particular object within scope of parole search].) The duffel bag was not a distinctly female item that would have precluded appellant as the owner of the bag.
Search of the Plastic Bag
Appellant does not dispute that he had actual possession of the black plastic trash bag he carried from room 28 at the time he was detained. Appellant argues, however, that there was nothing to suggest that appellant was doing anything other than simply emptying the trash. Again, we conclude on the facts outlined that there was reasonable suspicion that appellant exercised at least joint control or joint possession of the black plastic bag. (People v. Boyd, supra, 224 Cal.App.3d at p. 750.) Officer Brasil was aware that appellant had been in room 28 while King and Castro were there and had left room 28 carrying the garbage bag. As noted, Officer Brasil reasonably believed that appellant occupied room 28. Accordingly, it was reasonable for him to believe that appellant exercised at least joint control or joint possession of the black plastic bag.
In conclusion, the trial court did not err in denying appellant's motion to suppress the evidence found in the search of room 28 and the black plastic garbage bag he was carrying.
II. The Admission of Evidence of Appellant's Uncharged Offenses
Appellant contends that the trial court erred in admitting evidence of two of his prior convictions. Appellant asserts that the proponent of prior crimes evidence must overcome two hurdles. First the evidence must prove some fact other than his disposition to commit such an act. Second, even if relevant and admissible, the evidence must nonetheless be excluded if its probative value is outweighed by the probability that its admission will create substantial danger of undue prejudice.
Background
Before trial, the prosecutor moved the court under Evidence Code section 1101, subdivision (b) to admit evidence of appellant's prior bad acts for sale of cocaine base and two prior robberies in which appellant personally used a firearm. The prosecution argued that the sale of cocaine base was admissible evidence of appellant's knowledge of marijuana's nature as a controlled substance and of appellant's specific intent to possess for sale the marijuana found in this case. The prosecutor explained to the court that he wanted to bring in Sacramento Police Sergeant Wayne to testify to a direct hand-to-hand sale of cocaine by appellant. Appellant offered to stipulate that he knew of the controlled nature of marijuana, but the prosecution refused to accept the stipulation.
The prosecution argued that the two prior robberies with a firearm were relevant to appellant's knowledge of firearms and ammunition as well as appellant's intent to exercise dominion and control over them. In addition, the prosecution argued that the firearm offenses were evidence that appellant was not in the wrong place at the wrong time and the presence of the firearm was not a mistake or accident.
Defense counsel argued that the evidence was more prejudicial than probative under Evidence Code section 352 and impermissible propensity evidence under Evidence Code section 1101.
The court ruled the evidence of appellant's sale of cocaine admissible on the issue of appellant's intent and specific intent to sell the marijuana. The court ruled that the prosecutor could introduce the evidence through the testimony of Sergeant Wayne. As to the prior robberies, the court ruled that one of the prior robberies be admitted for the limited purpose of proving "knowledge and absence of accident or mistake regarding possession of the firearm." The court allowed the prosecutor to bring this evidence in by way of the conviction. After holding an Evidence Code section 402 hearing, the court excluded evidence of the other robbery conviction.
At the Evidence Code section 402 hearing Daniel Brew testified that in 1996 while staying at a motel a prostitute had approached him. After rejecting the prostitute's advances, he returned to his room. An hour or two later the prostitute knocked on the door to his motel room. When Brew opened the door appellant ran into the room with a gun in his hand. Appellant put the gun to Brew's face and threw him on the bed. Appellant pinned Brew to the bed while he jammed the gun into the back of Brew's head and demanded money. When the woman and appellant could not find Brew's money, appellant hit Brew with the gun. Appellant tied up Brew and left with his cash, earrings and pager.
The evidence of the sale of cocaine was presented through the testimony of Sergeant Wayne. He described how when he was undercover, appellant sold him a rock of cocaine. Sergeant Wayne had driven to a particular area of Sacramento where he was "given a nod to pull over" by appellant. Appellant asked the sergeant what he was looking for, to which the sergeant replied "a 40 piece" meaning $40 worth of rock cocaine or cocaine base. Appellant showed the sergeant a white rock-like substance, which the sergeant thought was too small for what he was spending. Appellant then signaled for the sergeant to follow him. Appellant led the sergeant to a residence where appellant showed him three other pieces from which he could choose. Ultimately, Sergeant Wayne exchanged $40 for the cocaine and arrested appellant.
On cross-examination, Sergeant Wayne admitted that the cocaine was not packaged in any way and the transaction took place on the street. The parties stipulated that appellant was convicted of selling cocaine.
The parties stipulated that in 1996 appellant was convicted of an armed robbery of Gary Anderson while personally using a handgun.
The court instructed the jury that appellant's 1991 conviction for sale of cocaine related only to count three and that the jury could consider it for the limited purpose of deciding whether or not appellant possessed marijuana with the intent to sell, whether or not appellant knew the nature of marijuana as a controlled substance and whether or not appellant had knowledge of how controlled substances are sold. With respect to the armed robbery conviction, the court instructed the jury that it could consider it related to only counts one and two and for the limited purpose of deciding whether or not appellant had knowledge of the presence of the handgun and/or ammunition, whether or not appellant had the intent to exercise dominion and control over the handgun and ammunition and whether or not appellant's alleged actions were not the result of mistake or accident.
Evidence Code section 1101, subdivision (a), prohibits admission of evidence of uncharged prior bad acts where the evidence is offered to prove the propensity of the defendant to have committed the charged act. Subdivision (b) of Evidence Code section 1101 provides that this rule does not prohibit admission of such evidence when the evidence is relevant to establish some fact other than the person's character or disposition. (People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt), superseded by statute on other grounds as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505.)
Specifically, Evidence Code section 1101, subdivision (b) provides "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act." Thus, prior bad acts are admissible if relevant to prove a material fact, such as motive, intent, plan, knowledge, identity, or absence of mistake or accident. (Evid. Code, § 1101, subd. (b).)
If evidence is offered under Evidence Code section 1101, subdivision (b), the trial court must weigh "whether the probative value of the evidence of defendant's uncharged offenses is 'substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.' (Evid. Code, § 352.)" (People v. Balcom (1994) 7 Cal.4th 414, 426-427.) The trial court exercises broad discretion in determining relevance. (People v. Kipp (1998) 18 Cal.4th 349, 371.)
We review rulings on the admissibility of evidence to determine whether there was an abuse of discretion. (People v. Memro (1995) 11 Cal.4th 786, 864.) In reviewing the trial court's ruling, we must consider the facts that were before the trial court at the time of its ruling. (People v. Welch (1999) 20 Cal.4th 701, 739; People v. Hernandez (1999) 71 Cal.App.4th 417, 425, [we may assess the trial court's ruling only on the facts made known to it at the time it made the ruling].) Thus, we evaluate whether the trial court abused its discretion in determining the evidence was admissible, based on the evidentiary proffers made.
With respect to the robbery conviction appellant argues that the issue in this case was identity. That is, the issue was who possessed the guns and ammunition not the intent with which that person possessed them. Further mistake and accident were not issues in this case. Appellant argues that there was no suggestion that he knowingly possessed the handgun and ammunition but mistakenly believed them to be something other than what they are. Accordingly, he argues the asserted grounds for admission were "red herrings."
With respect to the evidence of the hand-to-hand sale of cocaine, appellant argues that there were no common marks between the charged and uncharged crimes. Further, whether he knew that the green leafy substance in the bag was marijuana was not a genuine issue as the prosecutor admitted in his closing argument.
Appellant contends that the only possible purpose of the prior bad acts evidence was to show that he was the sort of man who commits the very crimes for which he was charged.
Sale of Cocaine
Prior acts of misconduct are admissible when relevant to prove an element of the charged crime (Ewoldt, supra, 7 Cal.4th 380, 402), such as the defendant's intent (People v. Robbins (1988) 45 Cal.3d 867, 879, superseded by statute on another ground as noted in People v. Jennings (1991) 53 Cal.3d 334, 387, fn. 13).
"The admissibility of other-crimes evidence depends on three principal factors: (1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence, e.g., Evidence Code section 352. [Citations.]" (People v. Sully (1991) 53 Cal.3d 1195, 1224; People v. Gallego (1990) 52 Cal.3d 115, 171.)
The least degree of similarity between the charged crime and the prior crime is required to establish relevance on the issue of intent. (Ewoldt, supra, 7 Cal.4th at p. 402.) "For this purpose, the uncharged crimes need only be 'sufficiently similar [to the charged offenses] to support the inference that the defendant " 'probably harbor[ed] the same intent in each instance.' [Citations.]" ' [Citation.]" (People v. Kipp, supra, 18 Cal.4th at p. 371.)
" '[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .' [Citation.]" (People v. Robbins, supra, 45 Cal.3d 867, 880.)
Here, the prosecution was required to prove not only that appellant possessed the marijuana, but also that he knew of its presence, knew of its nature or character as a controlled substance and specifically intended to sell it. (CALCRIM No. 2352, People v. Consuegra (1994) 26 Cal.App.4th 1726, 1731-1732 [the requisite mental state for a conviction for possession of a controlled substance for sale is satisfied when the drugs are possessed with the specific intent that they be sold].)
The California Supreme Court long ago recognized " ' "that if a person acts similarly in similar situations, he probably harbors the same intent in each instance" [citations], and that such prior conduct may be relevant circumstantial evidence of the actor's most recent intent. The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution.' " (People v. Gallego, supra, 52 Cal.3d at p. 171.)
Nevertheless, as our Supreme Court has cautioned before, "[t]he admission of any evidence that involves crimes other than those for which a defendant is being tried has a 'highly inflammatory and prejudicial effect' on the trier of fact." (People v. Thompson (1980) 27 Cal.3d 303, 314, fns. omitted, overruled on another ground by People v. Rowland (1992) 4 Cal.4th 238, 260.) Furthermore, our Supreme Court "has repeatedly warned that the admissibility of this type of evidence must be 'scrutinized with great care.' '(A) closely reasoned analysis' of the pertinent factors must be undertaken before a determination can be made of its admissibility." (Ibid., fns. omitted.) Furthermore, other crimes evidence "should be received with 'extreme caution,' and if its connection with the crime charged is not clearly perceived, the doubt should be resolved in favor of the accused." (People v. Haston (1968) 69 Cal.2d 233, 244.)
Applying the first step of the admissibility analysis, appellant's specific intent to sell was a material issue because it is an element of possession for sale of marijuana. Applying the second step of the analysis, appellant's prior crime is relevant to his intent to sell only if it is sufficiently similar to the crime for which appellant is on trial. However, in this case the only similarity is that a controlled substance was involved. The cocaine was not packaged in any way that resembled anything that was found in room 28. Although the prior and the current offenses need not be distinctively similar in order for evidence of the former to be admissible in a trial of the latter on the issue of intent, the offenses must have substantial similarities. (People v. Nible (1988) 200 Cal.App.3d 838, 848-849.)
When we look to cases involving other crimes that have approved the admission of prior crimes evidence on the issue of the defendant's intent we find more than one generic similarity present. (See e.g. People v. Pendleton (1979) 25 Cal.3d 371, 376-377 [other crimes evidence relevant to intent where the earlier and charged offenses shared the common characteristics of nighttime entry through locked doors, attacks on the victims, defendant's familiarity with the victims, and his discussion with them of himself and/or his parents]; People v. Huber (1986) 181 Cal.App.3d 601, 622 [other crimes evidence relevant to burglarious intent where other charged crimes shared common feature of nighttime entry through a window]; People v. Scott (1980) 113 Cal.App.3d 190, 198, 200-201 [other crime evidence relevant to intent where other and charged offenses shared common characteristics that the robber used a confederate and wielded a knife].)
Although it is established that prior incidents of possession of the same substance in a similar manner are relevant evidence of knowledge of the nature of a controlled substance and intent to sell (People v. Goodall (1982) 131 Cal.App.3d 129, 142; see also People v. Balcom, supra, 7 Cal.4th at p. 427), here there was a different controlled substance and there was no packaging involved in the prior sale of cocaine. The charged offense involved neither an actual sale nor cocaine. The only possible purpose of the evidence was to show that appellant is the sort of person who commits the crimes for which he was charged.
We note that at the time the court ruled the evidence of the cocaine sale was admissible, the court was not aware of the dissimilarity between that event and the possession of marijuana in the current case. We urge the trial court to insist on a detailed offer of proof from the prosecution so that the court can scrutinize the evidence with great care as required by People v. Thompson, supra, 27 Cal.3d at page 314.
Furthermore, in Ewoldt the Supreme Court emphasized that where uncharged offense evidence is cumulative it will often be inadmissible pursuant to Evidence Code section 352. (Ewoldt, supra,7 Cal.4th at pp. 405-406[the prejudicial effect of such evidence would outweigh its probative value, because the evidence would be merely cumulative regarding an issue that was not reasonably subject to dispute].) Here the evidence of the baggies, scale, and scanner were strong evidence of appellant's intent to sell the marijuana. Accordingly, the evidence that appellant had previously sold cocaine base was simply cumulative on the issue of his intent to sell the marijuana and should have been excluded.
Robbery Conviction
The admission of the prior armed robbery conviction evidence presents even more of a problem. The trial court admitted the evidence for the limited purpose of deciding whether or not appellant had knowledge of the presence of the handgun and/or ammunition, whether or not appellant had the intent to exercise dominion and control over the handgun and ammunition and whether or not appellant's alleged actions were not the result of mistake or accident.
For both the possession of a firearm and possession of ammunition charges, the prosecution was required to prove not only that appellant possessed or had under his control the firearm and the ammunition, but also that appellant knew that he possessed or had under his control the firearm and the ammunition. (CALCRIM Nos. 2511 and 2591.) That is, that he intended to possess the firearm and the ammunition.
Thus, "[w]rongful intent must be shown with regard to the possession and custody elements of the crime of being a felon in possession of a firearm. [Citation.] A person who commits a prohibited act 'through misfortune or by accident, when it appears that there was no evil design, intention or culpable negligence' has not committed a crime. [Citation.] Thus, a felon who acquires possession of a firearm through misfortune or accident, but who has no intent to exercise control or to have custody, commits the prohibited act without the required wrongful intent." (People v. Jeffers (1996) 41 Cal.App.4th 917, 922, (Jeffers).)
"As with any crime or public offense, in order to prove a violation of section 12021[.1], subdivision (a), the prosecution must prove, beyond a reasonable doubt, a union, or joint operation of act and intent. [Citation.] No specific criminal intent is required for this crime; general intent to commit the proscribed act is sufficient to sustain a conviction. [Citations.]" (Jeffers, supra, 41 Cal.4th at p. 922.) The act proscribed by section 12021.1, subdivision (a) is possession of a firearm. Therefore, whether possession is actual or constructive, it must be intentional. The same can be said with respect to the possession of the ammunition.
Although, "knowledge plus physical possession may ordinarily demonstrate an intent to exercise dominion and control . . . knowledge does not conclusively demonstrate such intent as a matter of law. Otherwise, a felon would be strictly liable for the crime immediately upon finding a firearm, even if found under innocent circumstances." (Jeffers, supra, 41 Cal.4th at p. 922.)
Intent to exercise dominion and control may be shown by circumstantial evidence and any reasonable inferences to be drawn therefrom. (People v. Williams (1971) 5 Cal.3d 211, 215.)
Evidence of prior offenses may tend " 'to negative accident or inadvertence or self-defense or good faith or other innocent mental state and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act.' " (People v. Robbins, supra,45 Cal.3d at p. 880.)
Again, we reiterate that although the prior and the current offenses need not be distinctively similar in order for evidence of the former to be admissible in a trial of the latter on the issue of intent, the offenses must have substantial similarities. (People v. Nible, supra, 200 Cal.App.3d at pp. 848-849.) To put it another way, to be admissible to prove intent on the charged offense, the uncharged misconduct must be sufficiently similar to support an inference that the defendant probably harbored the same intent on both occasions. (Ewoldt, supra, 7 Cal.4th at p. 402.)
We point out, however, that the intent of a defendant who points a gun at a victim and demands money cannot reasonably be disputed. The intent necessary for a conviction for armed robbery is the intent to take property from the victim and permanently deprive the victim of his or her property (People v. Lewis (2008) 43 Cal.4th 415, 464), not the intent to possess a firearm.
To be relevant, the uncharged offense "must tend logically, naturally and by reasonable inference" to prove the fact for which it is offered. (People v. Robbins, supra, 45 Cal.3d at p. 879.) To establish relevance on the issue of intent to exercise dominion and control of the firearm and ammunition, again, the prosecution had to show some similarity between the charged offense and the uncharged offense. (Ewoldt, supra, 7 Cal.4th at p. 402.) Furthermore, the prosecution had to show sufficient similarities between the two cases for the evidence to be admissible to prove knowledge. (See Ewoldt, supra, 7 Cal.4th at pp. 402-403, & fn. 6.) Here, there was no similarity.
The mere fact that once before appellant had possessed a firearm during a robbery does not tend to prove that he knowingly possessed the firearm and ammunition in this case. At most, the prior conviction evidence tends to show that he has a criminal propensity to possess firearms. This is precisely the use of evidence that Evidence Code section 1101, subdivision (a) prohibits.
Nevertheless, any error in admitting Evidence Code section 1101 evidence is reviewed under the standard of People v. Watson (1956) 46 Cal.2d 818. That is, whether there is a reasonable probability the result would have been more favorable to defendant if the evidence had not been admitted. (People v. Welch (1999) 20 Cal.4th 701, 750.)
The evidence against appellant was strong. The jury had before it virtually uncontradicted evidence that appellant rented room 28; that the firearm was found in room 28; that the ammunition was found in the black plastic bag that appellant was carrying; and that the marijuana was found in room 28. Furthermore, the indicia of drug sales found in the black duffel bag containing appellant's papers was strong circumstantial evidence that appellant possessed the marijuana for sale. Further, the evidence showed that either appellant or King or both had tried to dispose of the drugs and the ammunition by flushing them down the toilet negating any suggestion that appellant possessed the firearm, ammunition, or marijuana by mistake or inadvertence.
Given this evidence a result more favorable to appellant was not reasonably probable absent admission of the prior crimes evidence. For the same reasons, any error was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824]; People v. Cole (2004) 33 Cal.4th 1158, 1195.)
Appellant contends that the trial court violated Penal Code section 654 by imposing punishment on both count one, possession of firearm and count two, possession of ammunition.
In imposing consecutive sentences on counts one and two, the court reasoned that it was "appropriate in this case [in that] the ammunition was found, the bullet was separate from the weapon, and my feeling is that the weapon and the ammunition present a greater damage or danger to society . . . ."
Initially, we note," '[e]rrors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal.' [Citation.]" (People v. Hester (2000) 22 Cal.4th 290, 295.)
Whether in any given case Penal Code section 654 applies is a question of fact for the trial court, which is vested with broad latitude in making its determination. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) "A trial court's implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence. [Citation.]" (People v. Blake (1998) 68 Cal.App.4th 509, 512.) We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. (People v. Jones, supra, at p. 1143; People v. Akins (1997) 56 Cal.App.4th 331, 339.)
Penal Code section 654, subdivision (a), provides in pertinent part, "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
Thus, Penal Code section 654 bars multiple punishments for separate offenses arising out of a single occurrence where all of the offenses were incident to one objective. (Neal v. State of California (1960) 55 Cal.2d 11, 19; People v. Lewis (2008) 43 Cal.4th 415, 519.)
"On the other hand, section 654 does not apply when the evidence discloses that a defendant entertained multiple criminal objectives independent of each other. In that case, 'the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citations.] . . .' [Citation.]" (In re Jose P. (2003) 106 Cal.App.4th 458, 469.) "The divisibility of a course of conduct depends upon the intent and objective of the defendant." (People v. Liu (1996) 46 Cal.App.4th 1119, 1134.)
In reviewing the propriety of the imposition of multiple punishments for separate convictions under Penal Code section 654 based upon a finding that the defendant held more than one objective in committing those crimes, we evaluate whether there was substantial evidence to support that determination. (People v. Osband (1996) 13 Cal.4th 622, 730-731.) Thus, the question of whether the defendant entertained multiple criminal objectives being one of fact for the trial court, we will sustain the court's findings if there is substantial evidence to support them. (People v. Liu, supra, 46 Cal.App.4th at pp. 1135-1136.)
Appellant relies on People v. Lopez (2004) 119 Cal.App.4th 132 (Lopez), to support his contention that the consecutive sentences on counts one and two violate Penal Code section 654.
The Lopez court held section 654 barred multiple punishments for the defendant's convictions for unlawful possession of a firearm and possession of ammunition where the ammunition was loaded into the firearm. The police discovered a loaded firearm in Lopez's pocket. Lopez was convicted of both unlawful possession of a firearm (Pen. Code, § 12021, subd. (e)), and unlawful possession of ammunition (Pen. Code, § 12316, subd. (b)(1)). He argued on appeal that the trial court erred in not staying the sentence on the possession of ammunition count. (Lopez, supra, 119 Cal.App.4th at pp. 134-135.) In agreeing with Lopez, the court reasoned that possession of an unloaded firearm could, by itself, assist a person in committing another crime, because the gun can be used to frighten or club the victim. Ammunition, however, cannot be used alone to commit another crime. Lopez's single intent was therefore to possess a loaded firearm. (Id. at p. 138.) The Lopez court explained, "In resolving section 654 issues, our California Supreme Court has recently stated that the appellate courts should not 'parse [ ] the objectives too finely.' [Citation.] To allow multiple punishment for possessing ammunition in a firearm would . . . parse the objectives too finely. While there may be instances when multiple punishment is lawful for possession of a firearm and ammunition, the instant case is not one of them. Where, as here, all of the ammunition is loaded into the firearm, an 'indivisible course of conduct' is present and section 654 precludes multiple punishment." (Id. at p. 138.)
Respondent contends that Lopez is distinguishable. We agree. The Lopez court recognized the possibility of a case "when multiple punishment is lawful for possession of a firearm and ammunition." (Lopez, supra, 119 Cal.App.4th at p. 138.) This is that case because appellant possessed both a loaded firearm and additional live ammunition. Here, not all of the ammunition found by the officers during the search of room 28 and the black plastic trash bag was loaded into the firearm. Besides the ammunition in the firearm, which was found in the vent above the shower, Officer Brasil discovered 86 rounds of .22-caliber ammunition in a wet sock in the black plastic trash bag appellant was carrying. Furthermore, Officer Brasil found an empty plastic ammunition clip on the floor of room 28. Taken together these facts demonstrate appellant's intent to use not only the ammunition in the firearm, but also his separate intent to reload if needed. Thus, there was substantial evidence to support an implied finding by the court below that there were multiple objectives in the commission of the ammunition-possession and firearm-possession crimes.
The crime of possession of ammunition by a felon (Pen. Code, § 12316, subd. (b)) is a crime separate and distinct from possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)). (Cf. People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1410 [noting that a number of cases have rejected the argument that Penal Code section 654 bars separate punishment for weapons possession and another offense involving weapon].) To accept the argument that Penal Code section 654 bars multiple punishments for violations of sections 12021 and 12316 when the ammunition is found separate from the gun would be the equivalent of allowing a merger of these two offenses.
The purpose of section 654 is to insure punishment that is commensurate with a defendant' s culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.) The additional ammunition could have been used after discharging the two rounds in the gun. Appellant's act of having on hand additional ammunition carries with it the potential for gratuitous violence. Appellant's conduct was more culpable than if he had simply possessed a loaded gun.
Accordingly, we conclude that the trial court did not err in imposing consecutive sentences on counts one and two.
Alternatively, appellant argues that the sentence on counts one and two violated his rights under the Sixth and Fourteenth Amendments. Appellant acknowledges that the California Supreme Court has held that the imposition of consecutive sentences does not require a jury finding. Appellant raises the issue to preserve it for further review.
In People v. Black (2007) 41 Cal.4th 799, 824, the California Supreme Court held that imposition of consecutive sentences is a sentencing choice that does not require a jury finding. Precedent binds this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
IV. Cumulative Error
Since we have " '. . . rejected on the merits defendant's claims of error or have found any . . . errors to be non prejudicial,' " we reject appellant's argument with respect to the cumulative effect of any errors. (People v. Cole (2004) 33 Cal.4th 1158, 1235-1236.) We note that the California Supreme Court has observed, a defendant is "entitled to a fair trial . . . not a perfect one. [Citations.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) In appellant's case, he received a fair trial.
Disposition
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.